The early news trickling in from mainstream and alternative media reported about the Delhi High Court order granting six-month interim bail to Kanhaiya Kumar, JNU Students’ Union President, in a sedition case. What was initially highlighted was the court’s recognition of fabricated evidence, and as an interesting tid-bit, the court’s citation of a Bollywood film song. These have been highlighted in the media, in addition to this observation-
“8. ...The so called video recording of the incident by some channels has been reported to be doctored by the Press. The petitioner has been remanded to police custody thrice and has also joined the investigation. He is no more required for investigation of this case.”
Fresh from the exhilaration of a massive march to Parliament, the leadership of the JNU students’ movement was quick to announce a ‘victory march’, eagerly awaiting their Presidents’ return, along with a welcoming march planned for the next day. The immediate questions that lie before the students are: whether the movement will fragment since the most unifying goal of releasing the union President has been achieved, and how to effectively advocate for the release of the remaining two students currently in custody – Umar and Anirban.
There are, however, some insights from the bail order that may not bode well for the students, on closer scrutiny:
a) At the very beginning there is an observation that the JNU community as a whole is morally responsible for the actions of some students.
“2. Spring season is a time when nature becomes green and flower blooms in all colours. This spring why the colour of peace is eluding the prestigious Jawaharlal Nehru University (JNU) situated in the heart of Delhi needs to be answered by its students, faculty members and those managing the affairs of this national university.”
b) There is a recognition in the court’s view that the event “Country Without A Post Office” was liable for disruption of peace on campus, and that it was of an-anti national nature. On the other hand, the role of those who complained to the authorities so as for them to cancel the permission for the function (ABVP activists) and their political interests, has not come into the picture.
“19. …The JNU authorities on getting the information that in the guise of cultural function, some anti-national activities were to take place, cancelled the permission and the organising group was duly informed. The reason being that the posters about the proposed programme were against the judicial killing of Afzal Guru and Maqbool Bhatt and have been put up at all the hostels and these activities were likely to disrupt the peace and harmony of the campus. Apprehending breach of peace at the campus, the Chief Security Officer, JNU as well local police was informed.”
c) The State accuses Kanhaiya Kumar of staging his speech upholding the Constitution for future evidence in his defence.
“23. …Mr.Tushar Mehta, learned ASG for the State has further submitted that the speech given by the petitioner on 11thFebruary, 2016 was part of his strategy to create a defence.”
d) The court refers to a case involving Pappu Yadav to assert-
“28…(11) The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course.”
e) The court invokes the Hardik Patel case when considering definitions of sedition and whether the charge fits-
“34. What constitutes sedition has been recently considered by Gujarat High Court in
Hardik Bharatbhai Patel vs. State of Gujarat & Ors.2016(1) RCR (Criminal 542as under :-
14. I should be mindful of the fact that the case in hand is one wherein the accused is praying for quashing of the F.I.R. at a stage when the investigation is in progress. I should look into the allegations ealizi in the F.I.R., as they are without adding or subtracting anything from it. I am of the view that a speech or a statement, in which the speaker exhorts the persons, who are listening to him, to resort to violence, prima facie, could be said to be intended to excite disaffection towards the established Government and amounts to an offence under Section 124A of the Indian Penal Code. To put it in other words, to advise a person to persuade to violence as a means of attaining a particular goal or seeking revenge is not less objectionable then advising that person to commit violence himself for that purpose. In either case, the advice is to pursue a course of action, it is calculated to disturb the tranquility of the State. It is a recommendation to oppose the established Government by force.
f)The ideals of JNU as embodied on its website are invoked, in order to hold Kanhaiya accountable to them:
“37. The vision and object of Jawaharlal Nehru University as reflected in the Website of University is:
‘The living ambience and social milieu of the campus is also reflected in an integrated, interdisciplinary approach in teaching and research. There is freedom to define and design course content or start new courses. Research themes evolve with new developments in the area and the interface between different areas of study. Everyone at the university competes with himself/herself to excel in their own field of research. JNU is academically and socially a vibrant place where all have space to express their views.
The JNU campus is a microcosm of the Indian nation, drawing students from every nook and corner of the country and from every group and stratum of society. To make sure that this is so annual admission tests are simultaneously held at 37 centres spread across the length and breadth of the country, and special care is taken to draw students from the underprivileged castes and ethic groups by reserving 22.5 per cent of seats for them. Overseas students form some 10 percent of the annual intake. Students’ hostels and blocks of faculty residences are interspersed with one another, underlining the vision of a large Indian family.’
39. As President of Jawaharlal Nehru University Students Union, the petitioner was expected to be responsible and accountable for any anti-national event organized in the campus…”
g) The court order brings out the contrast between dissent in JNU and troops on the border.
“39. …While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.”
41. Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realizing that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters ofAfzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even.
42. The kind of slogans raised may have demoralizing effect on the familyof those martyrs who returned home in coffin draped in tricolor.
43. The petitioner claims his right regarding freedom of speech and expression guaranteed in …Constitution of India. He has also to be reminded that…fundamental duties of every citizen have been specified along with the fact that rights and duties are two sides of the same coin.”
h) The court’s observations on ‘anti-national slogans’ do not bode well for Umar and Anirban, who are seen as being part of the organising team for the event and are in custody. Kanhaiya Kumar, too, has to demonstrably prove his level of involvement.
“40. It is a case of raising anti-national slogans which do have the effect of threatening national integrity…”
i) JNU’s image as a ‘hub of intellectuals’ comes into the picture when Kanhaiya Kumar’s character comes into the discussion, rather than his economically backward background.
“44. The petitioner belongs to an intellectual class pursuing Ph.d. from International School of Studies, Jawaharlal Nehru University, which is considered as a hub of intellectuals.”
j) The teachers are also referred to as being responsible persons with respect to the issue, and the JNU administration has been advised to be tighter on such activity.
“45. The faculty of JNU also has to play its role in guiding them to the right path so that they can contribute to the growth of the nation and to achieve the object and vision for which Jawaharlal Nehru University was established.
46. The reason behind anti-national views in the mind of students who raised slogans on the death anniversary of Afzal Guru, who was convicted for attack on our Parliament, which led to this situation have not only to be found by them but remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident.”
k) Kanhaiya’s political activities are now somewhat legally restricted, by his undertaking to be submitted to the court.
“52. The time is ripe that while giving some concession to the petitioner on monetary aspect for purpose of furnishing the bond, he can be required to furnish an undertaking to the effect that he will not participate actively or passively in any activity which may be termed as anti-national.”
l) The bench has pointed that not all statements can be protected under the freedom of expression.
47. The investigation in this case is at nascent stage. The thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression.
m) The court makes a striking analogy involving ‘infections’, ‘cures’ and ‘amputation’.
“48. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”
Even as the Delhi High Court granted interim bail to Kanhaiya Kumar, it thus seems a little too early to declare victory – legal, moral or otherwise. What the students claim are “fabricated charges that must be dismissed” have not been dismissed.
The author is a research scholar in Modern and Contemporary History at Centre For Historical Studies, Jawaharlal Nehru University.